How have the courts interpreted privilege in a motion to amend a statement of claim?

Ontario, Canada

The following excerpt is from Belanger and Iles v Algoma Condo. Corp., 2016 ONSC 3845 (CanLII):

The Defendant referred me to Land v. Kaufman [1991] O.J. No. 1658 (Ontario Court of Justice General Division). The facts of the Land case included the plaintiff seeking to amend her statement of claim to withdraw certain admissions made therein. In support of the motion, the plaintiff’s solicitor filed an affidavit stating that she misunderstood the client’s instructions. During a cross-examination, refusals were made, namely answering questions regarding the instructions received from the plaintiff. Justice Salhany at paragraph 18 wrote: The real issue, as I see it in this case, is whether the privilege has been waived by the filing of her affidavit in support of the motion. I think it has. By averting to communications made by the plaintiff to her, the solicitor has waived the privilege.

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